In legal practice, there are cases when tax authorities make additional accruals of mandatory amounts of taxes and other mandatory payments to the budget based on the results of a tax audit, but for one reason or another, this tax obligation was not fulfilled by the taxpayer in a timely manner, and no measures were taken to collect it by the fiscal authority. The question arises, what to do in this situation? Is it possible to release property from the restrictions established by the tax authority?
An example of such a situation is a tax audit and its results in relation to citizen "B", conducted in 1999. According to the results of this tax audit, violations of tax legislation were revealed, in connection with which an act on the results of the tax audit was drawn up and additional tax amounts were accrued, and accordingly, for the entire period, a penalty was accrued on the amount of tax debt. In accordance with the tax legislation in force at that time, the tax committee sent a notice of the accrued tax amount. In the year 2000, a restriction was imposed on the Debtor's property for the purpose of forced collection of the debt. However, the tax authority limited itself to this. The property was not sold, the amount of debt was not collected. The issue of tax debt on an unfulfilled tax obligation arose in 2010, with the intention to sell real estate owned by citizen "B". As a result, it was discovered that the property had been subject to a tax lien back in 2000.
A natural question arises: how to act in this situation, what are the deadlines for fulfilling the tax obligation and the requirements for the forced collection of the amount of debt from the fiscal authority for such obligations?
Limitation periods for tax liabilities
The current tax legislation identifies such a concept as a tax liability, which is understood and recognized as the obligation of a taxpayer to the state, arising in accordance with the tax legislation of the Republic of Kazakhstan, by virtue of which the taxpayer is obliged to register with the tax authority, determine the objects of taxation and (or) objects related to taxation, calculate taxes and other mandatory payments to the budget, draw up tax forms, submit tax forms, with the exception of tax registers, to the tax authority within the established time limits and pay taxes and other mandatory payments to the budget (Article 26 of the Tax Code of the Republic of Kazakhstan).
Article 46 of the Tax Code establishes a period of time (statute of limitations) during which:
- the tax authority has the right to accrue or revise the calculated, accrued amount of taxes and other mandatory payments to the budget;
- the taxpayer (tax agent) is obliged to submit tax reporting, has the right to make changes and additions to the tax reporting, and withdraw the tax reporting;
- the taxpayer (tax agent) has the right to demand a credit and (or) refund of taxes and other mandatory payments to the budget, penalties;
- The tax authority is obliged to carry out an offset and (or) refund of taxes and other mandatory payments to the budget, penalties.
Clause 2 of Article 46 of the Tax Code establishes that the limitation period for a tax liability and claim is five years. The course of this period, as a general rule, begins to be calculated after the end of the relevant tax period. However, according to the current tax legislation, the expiration of the five-year limitation period is not grounds for terminating the tax liability, including the payment of taxes and other mandatory payments to the budget.
Application of previously existing legislation
In relation to the situation described above, we can analyze the tax legislation in force at that time. In this case, the principle of "retroactive force of law" is applicable, according to which the effect of a normative legal act does not extend to relations that arose before its entry into force (clause 1 of Article 37 of the Law of the Republic of Kazakhstan "On Normative Legal Acts"). That is, in other words, since relations on the fulfillment of tax obligations arose in 1999, the provisions of the law in force at the time of the emergence of legal relations are applied to such relations.
According to Article 148 of the Law "On Taxes and Other Mandatory Payments to the Budget" dated April 24, 1995, No. 2235, the limitation period for claims by tax authorities for payment of a revised tax amount or a previously assessed tax amount, as well as for claims by taxpayers for the return or offset of overpaid tax amounts, was set at five years.
Unlike the current Tax Code of the Republic of Kazakhstan, the previously effective Law of the Republic of Kazakhstan "On Taxes..." did not provide for direct grounds for terminating tax liability for both individuals and legal entities.
Therefore, given the absence of direct instructions in the previously effective Law of the Republic of Kazakhstan "On Taxes..." on the grounds for terminating a tax liability, it can be concluded that the fiscal authority does not have any legal actions to retain the property restriction after the expiration of the five-year limitation period.
How to write off a repaid debt
In connection with the above, several options may be considered in this situation. That is, an appeal directly to the tax authority, with an application to lift the restrictions, with a mandatory indication of the expiration of the five-year limitation period, as well as an appeal to the court in accordance with Chapter 27 of the Civil Procedure Code of the Republic of Kazakhstan, in the event of the tax authority's refusal to lift the restriction on the property.
In this situation, it is also possible to write off the penalty accrued on the principal amount of the debt.
- recognized as false enterprises on the basis of a court verdict or ruling that entered into legal force before July 1, 2010;
- corresponding to the conditions of Article 623 of the Code of the Republic of Kazakhstan “On taxes and other mandatory payments to the budget” (Tax Code);
- for which the amount of penalties accrued before January 1, 2009 was formed as a result of the submission of additional and (or) additional tax reporting upon notification during the period from January 1, 2009;
- carrying out one or more of the following activities:
- production of excisable goods;
- storage and wholesale of excisable products;
- sale of gasoline, diesel fuel and fuel oil;
- subsoil use;
- collection (procurement), storage, processing and sale of scrap and waste of non-ferrous and ferrous metals;
- construction (subject to the availability of the appropriate license);
- financial or insurance activities.
Thus, as a result, if the debt was formed as a result of actions not falling under Article 32-1 of the above-mentioned law, then the accrued penalty is subject to write-off in an uncontested manner.